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Application of the DMCAApplication of the DMCA

Steve BaronSteve Baron

February 12, 2008February 12, 2008

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Today’s AgendaToday’s Agenda

Review basic provisions of DMCAReview basic provisions of DMCA Discussion of Discussion of Perfect 10 v. CCBillPerfect 10 v. CCBill

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Outline of DMCAOutline of DMCA

Passed in 1998Passed in 1998 Provided new weapons for content owners Provided new weapons for content owners

to assert on technological and legal frontsto assert on technological and legal fronts Title I – criminalizes the possession and Title I – criminalizes the possession and

sale of certain technologies that allow sale of certain technologies that allow consumers to access copyrighted works.consumers to access copyrighted works.

Title II – makes it easier for content Title II – makes it easier for content owners to identify potential infringers and owners to identify potential infringers and take down their infringing contenttake down their infringing content

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Outline of DMCAOutline of DMCA

Title I (17 U.S.C. Title I (17 U.S.C. § 1201) – Three major § 1201) – Three major provisions:provisions: Anti-circumvention banAnti-circumvention ban Trafficking banTrafficking ban Copyright protection circumvention device banCopyright protection circumvention device ban Exceptions:Exceptions:

• Reverse engineering Reverse engineering • Identifying elements to achieve interoperabilityIdentifying elements to achieve interoperability• Defenses under copyright, including fair useDefenses under copyright, including fair use

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Outline of DMCAOutline of DMCA

Title II – Subpoena and Take Down Title II – Subpoena and Take Down Powers 17 U.S.C. § 512Powers 17 U.S.C. § 512 Limits liability of internet service providers Limits liability of internet service providers

(ISPs)(ISPs) Grant of immunity from contributory Grant of immunity from contributory

infringementinfringement• Safe harbor where ISP’s network has been used to Safe harbor where ISP’s network has been used to

transmit, rout, or provide Internet connections for transmit, rout, or provide Internet connections for material or for the intermediate and transient material or for the intermediate and transient storage of materials in the course of such storage of materials in the course of such transmitting, routing, or providing materials.transmitting, routing, or providing materials.

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Outline of DMCAOutline of DMCA

Title II (cont’d)Title II (cont’d) ISP must establish a notice an take down ISP must establish a notice an take down

mechanism to allow copyright holder to alert mechanism to allow copyright holder to alert ISP to the existence of infringing material and ISP to the existence of infringing material and request that access be disabled.request that access be disabled.

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Perfect 10 v. CBillPerfect 10 v. CBill

Who’s who?Who’s who? Perfect 10 = PlaintiffPerfect 10 = Plaintiff CBill, CWIE = DefendantsCBill, CWIE = Defendants

What’s the problem?What’s the problem? Perfect 10 makes money by selling “adult Perfect 10 makes money by selling “adult

entertainment” to subscribersentertainment” to subscribers CWIE provides webhosting service and CBILL CWIE provides webhosting service and CBILL

processes credit cards for e-commerce.processes credit cards for e-commerce.

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Perfect 10 v. CBillPerfect 10 v. CBill

What did Perfect 10 accuse defendants of What did Perfect 10 accuse defendants of doing?doing?

Did Perfect 10 serve notice and take down Did Perfect 10 serve notice and take down letters?letters?

Did the trial court grant immunity under Did the trial court grant immunity under safe harbor?safe harbor?

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Perfect 10 v. CBillPerfect 10 v. CBill

Ninth Circuit Ninth Circuit

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Perfect 10 v. CBillPerfect 10 v. CBill

Ninth Circuit Court of AppealsNinth Circuit Court of Appeals Provides further information about the requirement for Provides further information about the requirement for

duly implementing a repeat infringer policyduly implementing a repeat infringer policy Holds that DMCA take-down notices must Holds that DMCA take-down notices must individuallyindividually

comply with the statute’s notice requirements and that comply with the statute’s notice requirements and that a service provider’s receipta service provider’s receiptdoes not trigger take-down does not trigger take-down response.response.

Offers further insight into what might constitute Offers further insight into what might constitute interference with “standard technical measures.”interference with “standard technical measures.”

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DMCA or YMCA?DMCA or YMCA?